EASY
COME, EASY GO, EASY COME, EASY GO: No
More Weingarten Rights for Non-Union Employees, Says NLRB
Michael
Giles
On June 9, 2004, the National Labor Relations Board reversed – yet
again – its position on whether non-union employees have
a right to representation in investigatory interviews. In IBM
Corporation, the Board held that non-union employers are not
required to grant employees’ requests to have co-workers
present during investigatory interviews. This ruling, reversing
the 2000 decision in Epilepsy Foundation of Northeast Ohio, is
obviously good news for non-union employers. However, employers
should remain vigilant because, in this area of the law, history
has a way of repeating itself.
The right of representation for union employees has been relatively
consistent since 1975, when the U.S. Supreme Court declared in
the case of J. Weingarten that such a right existed. In 1982,
the Board's decision in Pacific Telephone & Telegraph Company
expanded upon union representation rights to include a requirement
that the employer offer information on the subject matter of
the proposed interview, as well as an opportunity for prior consultation
with the union representative.
But the Board has flip-flopped as to whether non-union employees
have the right to representation. In 1982, the Board held for
the first time that they had such a right. Three years later,
the Board reversed itself and held that Weingarten rights applied
only in union settings. This remained the Board’s position,
with only modifications, until 2000, when the Epilepsy Foundation
decision was issued. Now, with the IBM decision, the Board is
back to its pre-2000 position.
The IBM Board split along party lines, finding the following
about co-workers: (1) they do not represent the interests of
the entire workforce; (2) they cannot redress the imbalance of
power between employers and employees; (3) they do not have the
same skills as union representatives; and (4) their presence
may compromise the confidentiality of information obtained during
investigations.
In reaching its decision, the majority said it was not finding
that non-union employees lack Section 7 rights, are incapable
of representing their co-workers, or that their rights under
the NLRA are endangered. Instead, the majority firmly stressed
that its “only holding is that the non-union employer has
no obligation to accede to the request [of an employee to have
a co-worker present during an investigatory interview], i.e.
to deal collectively with the employees.”
The IBM decision is good news, but employer celebration should
be tempered by three critical observations about this decision.
First, the majority stressed that its decision expresses a “permissible” interpretation
of the NLRA. Second, the Board acknowledged that employment laws
(particularly those addressing workplace discrimination and harassment),
workplace violence, corporate scandals and national security
interests since 9/11 have combined to make it more important
than ever that employers be allowed to conduct investigations
without undue interference. Third, the Board announced that its
decision in this case was driven by its duty to “adapt
the Act to changing patterns of industrial life” and its “special
function of applying the general provisions of the Act to the
complexities of industrial life.”
What happens when the nation’s
industrial and legal climate or the Board’s composition changes?
Stay tuned!
